The Volokh Conspiracy

Congratulations to Steve Dillard, who founded the law blog Southern Appeal, for his appointment to fill a two-year vacancy on the Georgia Court of Appeals.

A bunch of people have asked me whether NPR’s firing of Juan Williams for his statement about Muslims on The O’Reilly Factor violates the First Amendment. The answer is “no.” NPR is not a government actor, and thus not bound by the First Amendment; that it gets some funding from the government does not make it a government actor, just as private colleges’ getting grants and other benefits doesn’t make them government actors bound by the First Amendment. See Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (so holding, even as to a school that got 90% of its money from the government).

The government may by statute impose many conditions on the use of government funds — that’s what Congress did with Title VI and Title IX (which generally bar recipients of federal funds from discriminating based on race and sex). Congress thus might condition NPR’s funding on its not firing commentators based on their off-NPR speech. (I say “might” because there are some twists which I set aside for now.) But Congress hasn’t enacted such a statute, and it is of course under no obligation to do so.

Today at 12:15 at the University of Utah College of Law I will be debating my colleague Amos Guiora about whether Miranda rights should be extended to terrorists.  I have previously blogged here and here about my view that Miranda’s “public safety” exception means that law enforcement officers investigating terrorist incidents need not give Miranda warnings.  I thought I’d briely lay out my argument a bit more fully now in anticipation of the debate.

The case of Umar Farouk Abdulmautallab (the so-called “Christmas Day Bomber”) usefully frames the issue.  According to public reports, Abdulmutallab spoke openly to FBI agents in his initial 50-minute interrogation — questioning that took place before he was Mirandized.  He then received treatment for his burns. And five hours after his initial interrogation a second team of interrogators was brought in to question him. These interrogators were part of a “clean team,” brought in to interrogate him after he was read his Miranda rights. The “clean team” began by reading Abdulmutallab his rights. And Abdulmutallab, advised of his right to remain silent, chose to exercise it.

The policy question here is why would anyone want to give Abdulmautallab Miranda warnings?  As Stewart Taylor forcefully wrote here:  

But no reasonable person could doubt that starting out with “you have the right to remain silent” is not the way to save lives.  Yet this is essentially the policy into which the Obama administration has locked itself by insisting that it did the right thing when it read Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, his Miranda rights after only 50 minutes of questioning and a hospital visit.

The only reason that I can see for giving Miranda warning in such a situation is that the is a constitutional requirement to do so.  But Miranda has been interpreted (in New York v. Quarles) as containing a “public safety” exception, allowing police officers to jettison the Miranda procedures in situations where the question is motivated by preventing further danger to the public.  In that case, for example, police officers were allowed to question suspect Quarles aboutt the location of gun he had apparently discarded in a supermarket. 

The exact parameters of the public safety exception are unclear.  But if any circumstance would appear to involve overriding public safety concerns, it would be a circumstance involving a terrorist investigation.  Indeed, the Second Circuit has allowed un-Mirandized question of terrorist suspects about how bombers were made and how to disarm bombs that were uncovered.  U.S. v. Khalil, 214 F.3d 111 (2d Cir. 2000).  Questioning of suspects like Abdulmutallab would seem to comfortably fit within the exception.

Because there appears to be some legal uncertainty about whether the public safety exception covers terrorist investigations, it would be useful for Congress to weigh in on the subject and clearly express its view.  Here’s one way a statute covering terrorist investigations could be drafted:

¨“When a law enforcement officer questions any suspect arrested for terrorist offenses found in chapter 113B of Title 18, or comparable offenses under state law, a situation involving the public safety shall automatically be deemed to exist and the officer need not provide any advice of rights to the suspect.  Any voluntary statements made by the suspect shall be admissible in any prosecution thereafter brought by the United States or by the District of Columbia.”

I will be interested to see what Professor Guiora and others think of my proposed statute.

Update:  Rick Pildes from NYU has alerted me to his excellent post, found here on Balkinization, also arguing for a codification of the Miranda public safety exception in terrorist situations.  Here an excerpt from his argument:

Congress [should] . . .  enact legislation to define the contours and boundaries of the public-safety exception to Miranda in terrorism cases. The public-safety exception already exists: the question is how it ought to apply in contexts, such as terrorism investigations, in which there is uncertainty because the courts have not yet had to define the scope of the exception. Congress could define the circumstances in which law enforcement can engage in non-coercive questioning of terrorist suspects, without Miranda warnings, for purposes of gathering general intelligence information, purpose (2) above, while still being able to use any statements against that suspect at trial. Informed by counterterrorism experts, Congress could specify the time period in which such questioning is necessary and permissible (hours? a day? several days?). Congress could consider authorizing a brief period of initial, non–Miranda interrogation, but then require law enforcement to get judicial authorization for any further period of such questioning. In other ways, Congress and the President could codify what these two institutions jointly believe is the appropriate and necessary contours of an intelligence focused, non–Miranda period of questioning.

I’ve long dissented from the claim that it’s hard to compare apples and oranges:

We compare apples and oranges all the time! We compare them by price, by how much we like the taste, by likely sweetness and ripeness, by how well they’ll go in a tasty fruit cocktail, and so on. In fact, every time we go to the store and buy apples rather than oranges — or vice versa — we are necessarily (if implicitly) comparing apples and oranges.

I hereby move that the phrase be changed to reflect two items that really are radically dissimilar — say, “comparing apples and democracy,” or “comparing oranges and the multiplication table.” All in favor, say “aye”; all opposed, say “nay”; motion carried. It’s Now Official; use them in good health.

Science, it turns out, is on my side, says an article in the Annals of Improbable Research. Thanks to boingboing and Jenny Macht for the pointer.

Co-blogger Eugene Volokh recently referenced some criminal laws relating to Buffy the Vampire Slayer. In this 2007 post, I considered the implications of the show for property rights and “quick take” condemnations. Unlike Eugene, I managed to incorporate Faith into my legal analysis as well. As I pointed out, eminent domain abuse is an excellent example of the rogue slayer’s “want, take, have” philosophy in action. Faith eventually realized the error of her ways. But many state and local governments so far have not.

In an earlier thread, reader frankcross asks:

Suppose parties call for Islamic law and specified a judicial forum. If a court shied away from deciding that, it would leave the issue unresolved. Essentially you would be denying judicial review to parties who wanted a court to use religious law and to resolve the question. Which kind of seems like discrimination against a religion, telling its adherents they are not allowed to specific religious law in their contracts.

I usually much oppose discrimination against religion (see, e.g., my Equal Treatment Is Not Establishment), but I think here such discrimination is dictated by what I call the No Religious Principles strand of Establishment Clause caselaw. Here’s a very brief summary: In a long line of cases (such as Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969)), the Supreme Court held that secular courts may not resolve religious questions, such as which rival church group most closely follows orthodox church teachings. Some states had rules, borrowed from English law, under which the more orthodox group would get to keep the church property, presumably on the theory that this would be more in keeping with what was intended by past donors to the church. But the Court held that such rules may not constitutionally be applied by civil courts (paragraph break added):

First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. Because of these hazards, the First Amendment enjoins the employment of organs of government for essentially religious purposes; the Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine. Hence, States, religious organizations, and individuals must structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions.

The Georgia courts have violated the command of the First Amendment. The departure-from-doctrine element of the implied trust theory which they applied requires the civil judiciary to determine whether actions of the general church constitute such a “substantial departure” from the tenets of faith and practice existing at the time of the local churches’ affiliation that the trust in favor of the general church must be declared to have terminated. This determination has two parts. The civil court must first decide whether the challenged actions of the general church depart substantially from prior doctrine. In reaching such a decision, the court must of necessity make its own interpretation of the meaning of church doctrines. If the court should decide that a substantial departure has occurred, it must then go on to determine whether the issue on which the general church has departed holds a place of such importance in the traditional theology as to require that the trust be terminated. A civil court can make this determination only after assessing the relative significance to the religion of the tenets from which departure was found.

Thus, the departure-from-doctrine element of the Georgia implied trust theory requires the civil court to determine matters at the very core of a religion — the interpretation of particular church doctrines and the importance of those doctrines to the religion. Plainly, the First Amendment forbids civil courts from playing such a role.

Continue reading ‘May Courts Interpret Contracts Under Religious Law (Islamic Law, Jewish Law, Canon Law, etc.)?’ »

Some VC readers, particularly academics, might be interested in the guest posts going up this week at Opinio Juris by John Louth, the editor in chief of academic law at Oxford University Press, thanks to the good offices of OJ’s Kevin Jon Heller.  Mr. Louth is guest-posting on international law publishing, but much of what he has raised is generally applicable to law publishing — things like relations between journals, books, and blogs — and the posts are a very interesting read, particularly for professors.  Thanks to him and to KJH for arranging it.  I’ve linked to the introduction from KJH; scroll up to get to the guest posts.

A very interesting set of N.Y. Times Room for Debate posts, from Prof. Stephen Wermiel (Justice Brennan’s co-biographer), Prof. Glenn Reynolds (InstaPundit), and Scot Powe (a historian of the Supreme Court).

At the request of President Obama’s Justice Department, the Ninth Circuit has stayed, at least for now, an order from California District Judge Virginia Phillips halting enforcement of DADT. The Ninth Circuit panel consisted of Judges O’Scannlain, Trott and Fletcher. The order states:

This court has received appellant’s emergency motion to stay the district court’s October 12, 2010 order pending appeal.  The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented.

Appellee [Log Cabin Republicans] may file an opposition to the motion for a stay pending appeal by October 25, 2010.  To expedite consideration of the motion, no reply shall be filed.

This is not very surprising. Given the importance of the change in military policy and the extraordinary scope of Judge Phillips’ order, I would also expect the Ninth Circuit to enter a stay pending appeal.  And if it doesn’t, I’d expect that the Supreme Court will.

Meanwhile, with investigations of service members for homosexuality halted and with openly gay men and women enlisting over the past week, the clock has been ticking.

UPDATE: Rick Hasen has some thoughts on the panel and the timing of the LCR reply.

(HT: Rex Wockner/Chris Geidner)

I just came across an interesting case, Rahman v. Hossain (N.J. Super. Ct. App. Div.), which was apparently handed down June 17, but which just appeared on Westlaw. An ex-husband was demanding the return of a $12,500 “mahr” payment that was made at the time of the marriage. The parties had apparently agreed to be married “under the law of Islam,” so the court heard evidence from an expert about whether Islamic law called for return of the mahr under certain conditions, and concluded that it did; therefore, the ex-wife was required to return the money.

As I’ve argued before, I think courts should indeed generally enforce religiously inspired contracts, whether prompted by an Islamic marriage, a Jewish marriage, or other events, so long as the contracts expressly set forth obligations in terms that courts can enforce while applying neutral principles of contract interpretation law. Courts should also generally be open to enforcing arbitration agreements where the arbitrators are applying religious law, pursuant to the terms of a contract that calls for such law (though I’m not sure how U.S. law would treat such arbitrations if there is evidence that the tribunal may have applied sex-discriminatory or religion-discriminatory procedural rules).

I also think courts should be open to applying, say, Saudi law — which incorporates Islamic law — when the normal choice-of-law rules (where related to contracts, torts, family law, or what have you) call for the application of Saudi law, just as similar rules call for the application of Canadian law or Mexican law in other cases. If there is some public policy objection to a particular aspect of Saudi law, that aspect wouldn’t be enforced (just as speech-restrictive European law wouldn’t be enforced in defamation cases filed in U.S. court); but that is no reason to generally reject the application of Saudi law in other contexts. The courts wouldn’t be deciding what true Islam calls for, but just evaluating what legal rules are actually part of the Saudi justice system.

But I do think that there might be First Amendment problems when the court is itself being asked to determine what Islamic law calls for, just as there are such problems when a government agency is deciding what is kosher. (Check out this interesting case dealing with this as to a Hindu wedding.) I’m not sure about this; perhaps in contract cases the court could avoid unconstitutional decisions about what Islamic law really requires by instead asking what the parties likely contemplated. But in any event, I think this is where a court might be skating close to the constitutional edge.

Here is an edited version of the decision:

Continue reading ‘Islamic Law in U.S. Courts’ »

From the Harvard Law Record:

Harvard Law School has shifted its grade publication policy again, according to Student Government representatives who met with Dean Martha Minow last week. The new 5.0 GPA scale that the Law School will use to calculate Latin Honors will no longer appear on the reverse side of current students’ official transcripts.

This latest alteration comes only a few weeks after the administration acknowledged publicly that it had made material changes to the grading system, including moving to a new GPA scale to calculate Latin Honors.

The new system, put in place after faculty recommendations, closely resembles a traditional 4.0 GPA scale. It awards a student five points for each Dean’s Scholar Prize credit, four for each Honors credit, three per Pass credit, two for a Low Pass credit, and zero for a Failing grade.

. . . “Because the numerical equivalents are really for that one internal use only [to assign “Latin Honors” such as Cum Laude], the administration was considering whether to discontinue putting the numerical equivalents on transcripts,” Law School spokesman Robb London said. “When student leaders expressed concerns about including the numerical equivalents on transcripts, Dean Minow agreed with them and decided that the numerical equivalents would no longer appear on the transcripts.”

So basically, Harvard Law has a traditional grading system: an “A” is called “Honors,” a “B” is called “Pass,” and a “C” is called “Low Pass.” But, it seems, they don’t want employers to know that.

I respectfully request quotes and citations for 1st-time California gubernatorial candidate Ronald Reagan being called an “extremist” (or something similar) during his 1966 campaign, in which he unseated incumbent Pat Brown (father of Jerry Brown). Any reputable citations in books, newspapers, etc., would be fine. Video, if such video exists, would be especially great. Thanks!

Buffy fans might be pleased to know that Nevada self-defense law and Washington self-defense law state that homicide is “justifiable when committed” “[i]n the lawful defense of the slayer.” Well, all state laws say that in essence, but Nevada and Washington actually use the word “slayer.”

Those with a taste for the vivid might also consider the word “manslaughterer,” which is not mentioned in any American statutes but does appear in 10 cases (according to Westlaw).

The flap over Christine O’Donnell’s debate comment suggests that many people still don’t know how Separation of Church and State became part of the law of the First Amendment.

On this, I reprint part of an old post from 2005:

6. The phrase “Separation of Church and State,” as Philip Hamburger establishes in his classic book on the subject, is not in the language of the first amendment, was not favored by any influential framer at the time of the first amendment, and was not its purpose.

7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.

8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.

9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.

10. Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed (or was it the Klansman’s Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the “eternal separation of Church and State.” In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.

11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again.

12. As Judge Roberts pithily pointed out in the hearings, only one justice (Breyer) thought that both of the leading establishment clause cases delivered this last term were correctly decided.

I want to thank everyone at NYU, and especially my host Richard Epstein, for my wonderful visit there last week. I really enjoyed meeting and talking with the students and faculty there, and was grateful for the wonderful turnout for my Hayek Lecture, “Commandeering the People: Popular Sovereignty and the Individual Insurance Mandate.” NYU has now posted an HD video of my lecture on YouTube a video.

If you want to read the paper on which my lecture is based, you can download it here.

Chris Coons, the Democratic Nominee for the U.S. Senate seat formerly held by Joe Biden, is a former law clerk on the U.S. Court of Appeals for Jane Roth of the Third Circuit. Coons is a heavy favorite to win his race and become a U.S. Senator. Which prompts a trivia question: If he wins, will Coons be the first U.S. Senator who was once a judicial law clerk?

I was thinking recently, after teaching a first-year law class, that one of the key aspects of “thinking like a lawyer” is understanding institutional roles. The law often breaks down power among different institutions, with each institution getting one part of a broader problem. That means that each institution only has limited power, and the question of how that institution is supposed to act is limited by the specific grant of power given to that particular institution. Of course, the lines won’t always be clear as to exactly what powers are given to each institution: Sometimes the lines are murky. But the basic idea of thinking of each institution based on its role is an important part of thinking like a lawyer.

Consider a routine criminal case. The investigator has one role: Determine if a crime has been committed and who committed it while complying with the relevant constitutional and statutory rules for gathering evidence. The prosecutor has a second role: Determine if the evidence is sufficient to prove the case beyond a reasonable doubt and if justice will be served by a prosecution. The grand jury has a third role: Determine if there is probable cause to permit charges to be brought. The defense attorney has a fourth role: Fight like hell, within the ethical rules, to defend the client. The trial judge has a fifth role: Make appropriate evidentiary rulings, ensure a fair trial, instruct the jury properly on the law, and, if the jury convicts, determine the appropriate sentence under the relevant sentencing scheme. The trial jury has a sixth role: Determine if there is proof of the elements of the crime beyond a reasonable doubt. On appeal, the appellate court has a seventh role: Review the lower court judgments under the appropriate standard of review. Each institution has its role, its appropriate job based on the breakdown of power among the different institutions created by and regulated under the law. It’s a big part about how lawyers think.

This understanding of institutional roles provides a source of endless frustration among non–lawyers. For non-lawyers, thinking about institutional roles can seem utterly ridiculous. It can come off as hiding behind technicalities and an almost pathological aversion to the common sense and the justice of the situation. But to lawyers, it’s just about how we think: It all reflects our background understanding, so intuitive after a while that we rarely consciously see it, that the law often distributes power among different institutions.

Third Way, which I take to be a centrist Democratic think tank, has just released a memo opposing a foreclosure moratorium.  It is here.  They make a key point that others have overlooked, both in this context and in the foreclosure amelioration context more generally:

While the fact of so many underwater borrowers is a drag on the overall economy, these borrowers also present a specific threat: they are the most likely to walk away (i.e., “strategically default”). By doing so, they would cause home values to fall even further, which in turn would put yet more borrowers at risk of going underwater as well. To stop this vicious spiral, policymakers must encourage underwater borrowers both to stay in their homes and stay current on their mortgages.

A foreclosure moratorium, however, would have the opposite effect by essentially eliminating the penalties of a default. If a homeowner is underwater, why not stop paying the mortgage if they can’t be forced to leave the house?

I’ll be at the University of Florida Law School tomorrow (Thursday) to speak to the student division of the Federalist Society on “The Mortgage Crisis.”  I’ve not been able to find a link directly to the information, but my understanding is that the program will be at 2:00 p.m. in law school’s moot courtroom.  If anyone has a direct link to the notice, please add it to the comments.

Hope to see you there.

My guess is that the Tea Party’s great victory in Delaware — in nominating Christine O’Donnell for the Senate — will turn out to be a rather substantial disaster for the movement. There are some serious issues that the T.P. movement is raising — but O’Donnell’s candidacy merely feeds suspicions that the movement is fed by ignorant, know-nothing Yahooism.

In the latest debate between O’Donnell and her rival, Chris Coons, there was this exchange (reported here):

After scolding Coons for his lack of knowledge of constitutional law for stating that intelligent design should not be taught in public schools . . . O’Donnell challenged her rival on his assertion that the U.S. Constitution creates a distinct separation between church and state.

“Where in the Constitution is separation of church and state?” O’Donnell asked. Upon hearing her words, the audience in the room burst into laughter.

It was not, alas, just a momentary gaffe — O’Donnell made it clear, later on, that she had never read the First Amendment to the Constitution.

Later in the proceedings, . . . Coons returned the conversation to the question of the constitutionally mandated separation of church and state.

“I absolutely oppose the widespread proposals by tea party candidates for us to repeal the 14th, 16th or 17th amendments.” Coons said. “I also think you just heard, in the answers from my opponent, and in her attempt at saying ‘where is the separation of church and state in the constitution’ reveals her fundamental misunderstanding of what our Constitution is, how it is amended and how it evolved. The First Amendment establishes the separation, the fact that the federal government shall not establish any religion, and decisional law by the Supreme Court over many, many decades –”

O’ Donnell then interrupted. “The First Amendment does?” she asked, skeptically.

Coons continued his explanation, and O’Donnell interrupted again. “So you’re telling me that the separation of church and state — the phrase ‘separation of church and state — is found in the First Amendment?”

Coons went on to cite cases the Supreme Court had decided that backed up the position of a wall between church and state.

“Let me just clarify,” O’Donnell pressed. “You’re telling me that the separation of church and state is found in the First Amendment?”

“The government shall make no establishment of religion,” Coons said, summarizing the gist of the specific words in the First Amendment’s establishment clause.

“That’s in the First Amendment?” O’Donnell asked again,

For someone ostensibly interested, as she put it, in returning this country to the “principles of the Founders on which our country is based,” this is beyond appalling. Jefferson, among many others, is turning over in his grave.

The video is here, if you want to see for yourself.

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The buzz on the Net about this is, predictably, scathing (as it should be); here’s my favorite, from
New York Magazine’s Daily Intel :

For someone hoping to serve in the Senate of the United States, saying “You’re telling me that [the establishment clause is] in the First Amendment?” is like a prospective astronaut saying, “You’re telling me we can’t breathe in space?” It’s like a heart surgeon walking into the operating room and asking, “You’re telling me there are four chambers in the pumpy thing?” And so on.

Those of us who have for many years considered ourselves “libertarians” recognize the problem: we have important, intellectually defensible positions on critical issues, but somehow the public face of the movement is led by people who end up sounding like Christine O’Donnell.

[UPDATE: A couple of responses to some of the comments. First, a number of you suggest that O’Donnell was making the subtle (and eminently defensible) point that the First Amendment doesn’t use the term “separation of church and state” (true enough), and that its actual language does not compel the reading that the Supreme Court has given to it (also true).

Now, a number of you take the position that that doesn’t really matter too much — at least her heart is in the right place and all that. Sorry, but I can’t agree with you on that one. A Senator’s obligation — her most important obligation — is to “support and defend” the Constitution and to “bear true faith and allegiance” to it. I don’t see how anyone can fulfill that obligation without knowing what the document actually says.

A very funny video, with some truths that idealistic pre-law students should be aware of (e.g., the odds that you will get to practice constitutional law are very, very slim). H/T Jim Chen at Moneylaw.

Tags: Humor

And she did so in what strikes me as a really bizarre way, by leaving a voicemail for Hill at her Brandeis University office over the weekend:

“Good morning Anita Hill, it’s Ginni Thomas,” it said. “I just wanted to reach across the airwaves and the years and ask you to consider something. I would love you to consider an apology sometime and some full explanation of why you did what you did with my husband.”

Ms. Thomas went on: “So give it some thought. And certainly pray about this and hope that one day you will help us understand why you did what you did. O.K., have a good day.”

Not quite as bizarrely, but still kind of strange, Hill sent the message to campus security (maybe she does this with all uninvited Thomas-related correspondence?), which then sent it on to the FBI, which assumedly noticed that there is nothing illegal about calling someone and asking for an apology.

Nor is it clear who leaked the existence of the voicemail to the New York Times.

Without trying to otherwise revisit the Hill-Thomas controversy, I suspect that there were better ways for Ms. Thomas to reach out to Prof. Hill, ways that would be much less likely to wind up in the New York Times.

I recently learned that a book has been published about me. Ok, more like a book has a chapter on me. Ok, it’s not really a book, it’s probably more of a booklet. And the part about me is around one page.

But you’d probably never know that if you saw the Amazon.com page for People Raised by Delaware: Cedella Booker, Orin Kerr, Tom Gallagher, William L. Nelson, George David Cummins, Robert B. Brandeberry, Chris Watson. Here’s the cover:

Now before you rush out and buy your copy — only $14.14, and eligible for free shipping with Amazon Prime — my understanding is that the “book” is really just a collection of Wikipedia entries. Apparently there used to be a Wikipedia entry, “People Raised By Delaware” , which had links to people raised in Delaware. The entry no longer exists because of the obvious error of using “by” instead of “in.” Anyway, the “book” by that title is just a collection of the biographies that happened to be linked to that page when it still existed, all sold by a company “Books LLC” that lists itself as the “author.” (You can see a more current example with the current Wikipedia category “People Raised as Children in the Children of God.” The book version by “Books LLC” is available here.)

Some random guy on the Internet says this is legal because Wikipedia is published with a Creative Commons license that allows it. Normally I wouldn’t rely on some random guy on the Internet for a legal conclusion like that. But for this particular post, it’s actually kind of fitting, isn’t it?

From a BBC story about a Saudi Prince, now living in London, who murdered his servant after having a sexual affair with him:

If he ever returns to his home country he faces the possibility of execution — not because of the murder, but because being gay is a capital offence in Saudi Arabia.

The stimulus bill included $5 billion for weatherization projects.  The idea was not just to create jobs, but also invest in energy efficiency.  The money didn’t get spent quite as quickly as some had hoped, but it was still worthwhile , right?  Maybe not.  The stimulus funds ramped up weatherization programs so much that quality control and oversight may have suffered.

Exhibit A is Illinois’ Weatherization Assisatance Program, which received $242 million in stimulus money.  As the NYT’s Green blog reports, a new Department of Energy Inspector General audit of Illinois’ program finds serious problems.

An audit by the inspector general focused on some work done by the Community and Economic Development Association of Cook County, one of 35 agencies in Illinois that are expected to share $91 million over three years. The audit looked at 15 homes and found that 12 failed final inspection “because of substandard workmanship.” In some cases, technicians who tuned up gas-fired heating systems did so improperly, so that they emitted carbon monoxide “at higher than acceptable levels.”

In eight cases, initial assessments of the houses and apartments called for “inappropriate weatherization measures.” In one case an inspector called for more attic insulation but ignored leaks in the roof, which would have ruined the insulation, the audit said. And for 10 homes, “contractors billed for labor charges that had not been incurred and for materials that had not been installed.’’ . . .

The federal audit said that Illinois had found a 62 percent error rate when it re-inspected homes weatherized by CEDA. And sometimes CEDA was spending more for materials than an individual homeowner would spend, the audit found. Some of the work created fire hazards, the audit said.

These results may not be representative of programs in other states, but there is good reason to be concerned.  Thanks to the stimulus, state agencies got lots more money to spend.  In Illinois’ case, the stimulus increased weatherization funds ten-fold.  Agencies received the funds even if they lacked the administrative capability to spend it wisely — particularly if they were expected to spend it quickly.    As a consequence, high levels of waste were to be expected, and results like those found in the IG’s Illinois audit should not be a surprise.

Curtis Reed Jr., the Chair of the Vermont State Advisory Committee On Civil Rights (I’m not sure whether that’s current or past chair), has this argument against the Brian Dubie for Governor “Pure Vermont” advertising campaign:

Brian Dubie’s “Pure Vermont” brand is [an] example of cross-cultural blundering. Presumably, the slogan refers to Vermont’s agricultural products and environmental legacy. But for many Vermonters, these words denote racial, religious and cultural oppression. They imply that Vermont is a place reserved for white Christians....

Vermont’s population is becoming increasingly diverse. Over the past decade, nearly 95 percent of the state’s new residents were racial and ethnic minorities. The “pure” brand perpetuates the “native” verses “flatlander” divisive wedge for the 60 percent of us who were born someplace other than this great state. Tens of thousands of Vermonters today come from non-Christian religious traditions whose recent histories recount public humiliation, persecution and genocide under the rule of oppressive regimes.

Dubie’s brand resurrects the horror of the Eugenics Survey and the 1931 passage of An Act for Human Betterment by Voluntary Sterilization. This measure codified the practice of racism, harassment, and the sterilization of the Abenaki people. “Pure Vermont” raises the specter of Hilter’s Aryan Nation and the Khmer Rouge where the purifying agent was genocide.

And the slogan is a bitter reminder of the bigotry and racial segregation experienced by blacks under slavery and Jim Crow. The precipitous drop of Vermont’s black population in the early 20th century was no doubt partially due to the Klan’s efforts to keep Vermont pure....

The brand [also] turns a deaf ear to the sensitivities of students of color and LGBT students....

The “Pure Vermont” brand is pure invalidation of the fastest growing segment of our population. And the brand’s handlers have been dishing out a healthy dose of avoidant behavior or, optimistically, benign neglect. The inherent challenges and opportunities of a more multicultural Vermont should not be ignored or buried in the polite discourse of denial. Failure to authentically affirm our presence today will prove, in years to come, to be the Achilles heel of Vermont’s economic recovery, prosperity, and a sense of community free of prejudice and discrimination of all kinds.

“Pure Vermont” does nothing to bring Vermonters together. Vermont deserves inclusive, decisive, self-aware leadership with the 21st century skills to negotiate the oncoming changes within and beyond our borders.

That’s right — “‘Pure Vermont’ raises the specter of Hilter’s Aryan Nation and the Khmer Rouge where the purifying agent was genocide.” Unintentional self-parody at its finest.

From Kuensel Online (“Bhutan’s daily news site”):

Gelephu dungkhag court sentenced last week a 40-year old man to three years in prison for attempting to promote civil unrest.

Prem Singh Gurung from Tarithang was arrested on May 21, after villagers in Gonggaon and Simkharkha of Jigmecholing gewog complained that he was screening movies on Christianity in the two villages....

Kuensel sources said that Prem Singh Gurung invited the villagers, saying that he would be screening Nepali movies, but in between he would show movies on Christianity....

Gelephu police filed the case on July 23 and charged him for the promotion of civil unrest, and violation of sections 105(1) and 110 of Bhutan information, communication and media act, which says that a producer or owner or importer of any film, which is intended for public exhibition by any mode of information and communication technology or media within Bhutan, shall submit the film for examination; and failure to comply with the requirement shall be an offence....

Continue reading ‘Christian in South Asian Country Sentenced to Prison for “Attempting to Promote Civil Unrest” by Screening Pro-Christianity Movies’ »

Reader Tim Hudson writes:

Other than Justices Sotomayor and Alito (who were both prosecutors) and maybe Ginsburg (with the ACLU), have any other Supreme Court Justices ever tried a case? In addition, has any active Supreme Court Justice ever tried a civil case to a jury?

The federal appellate trend is to draw from biglaw appellate groups, academia, and the S.G.‘s office. I think we lose something (especially on procedural and evidence issues) when the members of the appellate courts (including SCOTUS) never have put a file together.

I’m inclined to suspect that the Justices have more trial experience than one might at first think, because we don’t pay much attention to their early careers. Justice Kennedy was a lawyer in California from 1961 to 1975, and I believe was generally in a small practice, so I’m sure he had plenty of civil cases, likely including jury trial cases. Justice Scalia was a lawyer at a big Cleveland firm from 1961 to 1967, so I suspect he had some civil jury trials as well. (My sense is that junior lawyers at big firms had more civil jury trials back then than they do now.)

Moreover, I don’t think that trial experience is necessary for a Justice: Chief Justice Roberts was of course one of the leading appellate lawyers in the nation, which is pretty significant experience even if he had never tried a case (I’m not sure whether he had tried any cases). Likewise, Justices Breyer and Kagan were significant scholars, and Justice Breyer was a very well respected appellate judge; Justice Thomas had significant administrative agency experience, which is pretty relevant to many Supreme Court cases. Nonetheless, I think the reader’s question is interesting, so if readers have any specific data on which Justices have tried criminal cases, civil cases, or in particular civil cases before a jury, I’d love to see it.

A newly filed case, Bluman v. FEC, challenges 2 U.S.C. § 441e, which provides:

It shall be unlawful for—
(1) a foreign national, directly or indirectly, to make—
(A) a contribution ... in connection with a Federal, State, or local election;
(B) a contribution or donation to a committee of a political party; or
(C) an expenditure, independent expenditure, or disbursement for an electioneering communication ....

(b) ... As used in this section, the term “foreign national” means ... an individual who is not a citizen of the United States ... and who is not lawfully admitted for permanent residence ....

Plaintiffs say they live in the U.S. and have visas that let them work at a particular place, though they aren’t permanent residents (a status that would let them work anywhere). People with such visas (or with student visas) may often live legally in the U.S. for many years without becoming permanent residents or citizens. Generally speaking, they have the same First Amendment rights as citizens (at least when it comes to criminal or civil liability for speech); the question whether that also extends to (1) the right to contribute to candidates or parties, and (2) the right to make independent expenditures in support of or opposition to candidates. Prof. Rick Hasen (Election Law Blog) has more.

Today Justice Sotomayor authored what strikes me as a rather remarkable dissent from denial of certiorari in Pitre v. Cain, a pro se Eighth Amendment case brought by a prison inmate whose case was dismissed as “patently frivolous” by the trial court and affirmed by the Fifth Circuit in a short one-paragraph order. What is it about this pro se prisoner case that grabbed Justice Sotomayor’s attention, and led her not only to say that she would have granted the case, but to announce that she would have voted in the inmate’s favor?

Let’s take a look.

Pitre is an HIV-positive inmate in the Louisiana state prison system who has been prescribed medication to treat his HIV. In 2008, he was transferred to a particular corrections facility, the Phelps Correctional Center, where inmates apparently have to do hard labor. Pitre decided to protest the transfer by refusing to take his HIV medication. Pitre was then made to do hard labor like the other inmates in the facility, and he has been really struggling to do the work given his illness and his failure to take his medication. Pitre complained that the state was making him do harder labor than he could do given his illness, in violation of his constitutional rights. The state responded that Pitre was bringing it on himself because he was refusing to take his medication that would enable him to do the work. In effect, each side blamed the other: Pitre blamed the state for making him work when he was in such bad shape, and the state blamed Pitre for refusing to take his medication so that he was in such bad shape in the first place.

The magistrate judge agreed with the state’s view, and recommended that the case be dismissed as “patently frivolous”:

A claim of deliberate indifference based on an inmate’s work assignment is actionable only when a prison official assigns an inmate to a job that the official knows would “significantly aggravate” the inmate’s serious medical needs. Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir.1989)(citing Black v. Ciccone, 324 F.Supp. 129, 133 (W.D.Mo.1970). From the outset, plaintiff was aware of the results that were certain to follow should he discontinue his medication. Nevertheless, with full knowledge of those effects, he chose to discontinue an admittedly successful course of treatment. All of the deleterious symptoms experienced by plaintiff, and complained of herein, were caused by his refusal to participate in the therapeutic plan offered by the defendants; his current symptoms were neither caused nor even exacerbated by the defendants. Plaintiff, has been, as the saying goes, “hoist by his own petard” FN3 and this attempt to blame his current predicament on the defendants is absurd. A ruling in plaintiff’s favor herein would encourage him to continue on this self destructive path.

FN3. Hamlet, Act III, Scene 4, lines 206–07, “For ‘tis the sport to have the engineer/Hoist with his own petard” In common usage the phrase means to fall into one’s own trap.

The district court agreed, adopting the magistrate’s report and recommendation in a one-page order. The Fifth Circuit then affirmed in a one paragraph order that read as follows:

Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:
The judgment of the district court is affirmed. Mr. Pitre has been given medical care, but he refuses to take medication which results at times in physical problems. Evidence of conscious indifference is not presented. The report of the magistrate judge dated April 29, 2009, 2009 WL 1491042, explains the reasons for dismissal. AFFIRMED.

Pitre then filed his own cert petition, which the Court denied over Justice Sotomayor’s dissent. Justice Sotomayor would have construed the pro se petition liberally as making claim that Pitre had been punished for his refusal to take his medication:

His pro se complaint and attachments thereto, “liberally construed,” Estelle v. Gamble, 429 U. S. 97, 106 (1976), allege . . . that respondents . . . punished him for refusing to take medication, or attempted to coerce him to take medication, by subjecting him to hard labor that they knew exceeded his medical limitations.

Specifically, Sotomayor would have liberally construed the complaint as stating a Due Process claim that making Pitre do hard labor was an attempt to improperly punish him to force him to take his HIV medication despite his liberty interest in refusing medication. This was an open question, Justice Sotomayor contended:

We have . . . held that prison officials may forcibly treat a mentally ill inmate with antipsychotic drugs “if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.” Harper, 494 U. S., at 227. We have not considered, however, whether prison officials may require inmates with HIV to take medication, such that the refusal to do so might justify the imposition of sanctions by such officials.

Second, Justice Sotomayor would have held that the liberally construed complaint stated an Eighth Amendment violation:

Pitre’s decision to refuse medication may have been foolish and likely caused a significant part of his pain. But that decision does not give prison officials license to exacerbate Pitre’s condition further as a means of punishing or coercing him—just as a prisoner’s disruptive conduct does not permit prison officials to punish the prisoner by handcuffing him to a hitching post, see Hope, 536 U. S., at 738. Pitre’s allegations, if true, describe “punitive treatment [that] amounts to gratuitous infliction of ‘wanton and unnecessary’ pain that our precedent clearly prohibits.” Ibid. I cannot comprehend how a court could deem such allegations “frivolous.” Because I believe that Pitre’s complaint states an Eighth Amendment violation, I would grant the petition for a writ of certiorari and reverse the judgment below.

I find Justice Sotomayor’s opinion a bit puzzling. I haven’t seen a copy of the complaint, so it’s unclear if it really could be liberally construed in the way Sotomayor does. But even so construed, I’m not sure I get the argument. First off, I’m not sure what Sotomayor is doing with the Due Process argument: Is she suggesting the Court take the case to decide that issue, even though it was not discussed below? It’s not entirely clear.

On the more substantive Eighth Amendment claim, Sotomayor suggests that if we construe the complaint as saying that Pitre was punished for his refusal to take medication, then it’s an Eighth Amendment violation. But that seems to artificially remove Pitre’s own role in creating his condition out of the picture, which doesn’t seem plausible to me. Sotomayor relies on Hope v. Pelzer, where the inmate was shackled after his misconduct was completed: The inmate had some role in triggering the punishment, as is the case here, and the Court still found an Eighth Amendment. But Hope didn’t have any control over whether he was shackled after he engaged in misconduct: He was left to suffer. That’s not true with Pitre, who has made the voluntary and continuing choice not to take his medication that appears to be the cause of his work being so hard for him. It’s hard to imagine that there would have been an Eighth Amendment violation in Hope if Hope had been shackled, given the key, and told that he could let himself out if he wanted. Or so it seems to me: I suppose this depends on part on what we take to be the likely ameliorative effect of taking the HIV medication, which doesn’t get discussed in any of the opinions.

Anyway, whatever the substantive merits of Pitre, it’s particularly interesting that Sotomayor chose to write on it. As far as I can tell, there was nothing special about this case that made it high-profile or would normally get a lot of attention. It was just a pro se prisoner petition in a big stack of IFPs that normally would be short-formed with a quick “Splitless, factbound, I recommend DENY.” That alone makes this opinion quite interesting.

The Foundation for Individual Rights in Education has the details. The university admits that it is excluding the group from generally available student group registration benefits, because the university disapproves of the group’s message:

Considerable research indicates the use of cannabis does not contribute to healthy decision-making, particularly in college-age populations. Given the above, the University determined that recognizing the “Students for Cannabis Policy Reform Group” as a DePaul student organization would not be congruent with our institutional goals regarding the health and well-being of our students.

I rather doubt that recognizing such a group would materially affect the level of marijuana use by DePaul students. But denying recognition would affect the amount of debate about marijuana policy that takes place. Sounds like unhealthy decision-making on the university’s part to me.

DePaul is a private university, so it’s free to engage in unhealthy decision-making. But excluding the expression of some views from the very broadly open student group recognition program, it seems to me, is the gateway drug to broader restrictions as well, restrictions that are even more dangerous to the culture of debate and discussion that universities, private and public, ought to be promoting. DePaul itself has officially stated, in its Guiding Principles on Speech and Expression that it is “committed to fostering a community that welcomes open discourse.” And while that document seems to suggest that DePaul’s Catholic mission may support some restrictions aimed at protecting “dignity,” “respect,” and “civility,” I don’t see anything in that statement that justifies discrimination against student speech that promotes legalization of marijuana. So I’m glad that FIRE is taking DePaul to task for its position.

Finally, DePaul’s letter suggests that denying recognition to the student group would still leave open “myriad opportunities for students to gather together and express their views to the larger community regarding the use of and/or legalization of cannabis.” But if indeed the group will be able to speak as effectively without the benefits of recognition, then I don’t see how the university’s action will further its stated goals. And if the university’s action will somehow diminish the amount of speech that might promote “[un]healthy decision-making,” then that must mean that the university hopes the group will not speak as effectively without the benefits of recognition.

UPDATE: I originally characterized DePaul’s actions, in the second sentence of the paragraph that starts with “DePaul is a private university,” as “banning the expression of some views.” This was intended as shorthand for the exclusion of the views from the benefit program; but, as commenter neurodoc pointed out, that is not accurate, as the last paragraph of this post makes clear. I’ve therefore corrected the post.

A few weeks ago, I returned to my beloved University of Michigan, for a law school class reunion. This time, I stayed an extra day, in order to speak to law students at a lunchtime event on Monday, organized by the U of M Federalist Society. Michigan Prof. Richard Primus provided some thoughtful commentary on my presentation, and the FedSoc organization was outstanding. Anyway, the extra 36 hours on campus was a great opportunity to walk many miles revisiting the immense Michigan campus, the U of M’s beautiful Arboretum, and Ann Arbor.

The campus visit reminded me of how much of the education I received at the University of Michigan took place outside the Law Quad–even though the quantity and quality of education received inside the Quad were excellent. My start as a journalist during law school was writing theater reviews, and then op-eds for the Michigan Daily.  Unlike some Daily alumni, I’ve never won a Pulitzer Prize, but like all Daily writers, I benefited from the opportunity to work for a solid daily newspaper with a circulation of 18,000.

Other law school friends who got outside the Law Quad also had great experiences. One friend played interscholastic rugby. My 1L roommate found a small church in Ann Arbor, which at the time was holding services in a room at the YMCA. My roommate was a very studious fellow, even by law school standards, but the church drew him towards something more important. After serving as a JAG officer in the Air Force, he became an ordained minister.

Even if the university beyond the law school doesn’t help you discern a vocation or avocation, you’ll still find lots of theater, music, museums (including mini-exhibits in classroom buildings), guest lectures on topics other than law, and so on. Not to mention intramural and spectator sports.

Not every law school enjoys the good fortune of being located on a flagship research university campus with 41,000 students. But if your law school does share a campus with a university, it’s almost certain that there’s something there for you to enjoy. The law school experience can be all-consuming, especially during the first year. If you take the time to explore your university, you’ll give yourself a helpful mental change of pace, and have some fun. And as the Grateful Dead put it in Box of Rain, “Maybe you’ll find direction around some corner where it’s been waiting to meet you.”

I appreciate Jonathan Adler’s response on the nature of Randy Barnett’s proposed act/omission distinction on the scope of federal power. Given that this is a proposed distinction, not one presently recognized in the caselaw, my real interest at this stage is just getting a sense of how such a distinction is supposed to work — not, as Jonathan has focused on, the degree to which the general category of distinction would be “precedented” or “unprecedented.”

In particular, I’m just trying to understand if the proposed test is that Congress can regulate it so long as there is some affirmative act included in the prohibition, or rather if the proposed test is some kind of more complicated test that either includes some nexus requirement between the act or omission or else has some other requirement beyond an act. In the comment thread, Jonathan says that he assumes there is some sort of nexus requirement. But I don’t know if that is what Randy has in mind.

While we’re on the topic, I’d also be interested to know more on the meaning of “mandate” in the proposed distinction between regulating acts and regulating omissions by “mandating” conduct. What exactly does it mean to “mandate” action? For example, does the government “mandate” an act if a person has the choice of paying a fine instead of acting? What if the fine is very low, like, say, $400? $100? $1? Does it depend on the mechanism for collecting the fine? It seems to me that the difficulty is that the law often encourages people to take a certain act through economic incentives. For example, Congress might pass a tax break for people who do something that Congress wants people to do. Where exactly is the line between a (presumably) permitted incentive to act and an illegitimate mandating of conduct?

Orin is concerned about the ability of the Supreme court to draw a line between the federal government’s authority to regulate or prohibit conduct, on the one hand, and its ability to mandate conduct on the other.  Drawing a line of this sort may be difficult, but it is hardly unprecedented.

Consider some of the Court’s decisions regarding state sovereignty which adopt a limitation on federal power that is similar to (though not completely analogous to) the act/omission limitation Orin and Randy have been discussing.  The federal government may prohibit states from engaging in certain conduct, regulate particular conduct, and even place conditions on certain types of conduct, but the federal government may not mandate that states regulate private conduct.  This sort of “commandeering” is prohibited under New York and Printz.  The federal government may push against this line, such as by attaching conditions to the receipt of federal funds or regulating states in other ways so as to induce their cooperation, but the underlying limitation remains.

The rule against commandeering can be viewed as a limitation very similar to that which Randy has been defending, as the federal government can regulate state conduct (and prohibit it), but  not mandate that states engage in conduct in the first instance.  So, for instance, the federal government can say to states that if they hire employees, they must follow all sorts of rules (e.g. wage, hour and nondiscrimination rules), but the federal government cannot mandate that states hire individuals in the first place.  The federal government may require state governments to undertake steps to mitigate environmental impacts when building roads or other infrastructure, but it cannot neither require a state to construct infrastructure nor take affirmative conservation measures independently of some other activity subject to federal regulatory authority.  The federal government may also condition the receipt of federal monies on compliance with all sorts of conditions on how the money will be spent, and even require recipient states to adopt various programs, but it could not simply mandate that states create the programs in isolation.  This may not perfectly track the act/omission distinction Randy and Orin have been debating, but I think it’s close enough to demonstrate that the Court has engaged in the sort of line-drawing Randy is seeking to encourage here.

Again, my point in raising this is not to say that line-drawing of this sort is easy.  I concede that it is not.  Even lines that appear clear from a distance can be difficult to apply in particular cases.  My point here is simply that the line-drawing the Court would be asked to undertake in the context of the individual mandate does not strike me as any more difficult than the line-drawing the Court has readily undertaken elsewhere, including in the context of the proper balance between federal and state power.